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| Supremacy of the Constitution and the Parliament | | | Omkar Dattatray | 2/4/2020 10:06:10 PM |
| | The supremacy of the constitution and the parliament is in news these days due to the enactment of the much needed amendment to the Citizenship Act and also due to the abrogation of the controversial article 370 of the constitution of India. Legislature, executive judiciary and the fourth estate are the four pillars of the parliamentary democracy. The constitution has very clearly delineated the powers of these wings of the democratic governance and all of us including those in power should respect the theory of the separation of the powers. Constitution is the supreme document and is above all and its supremacy should be respected and upheld in all circumstances. Parliament is the supreme legislative body and it can make laws on all matters but should legislate within the overall framework of the constitution. Thus the supremacy of the constitution viz-a-viz the parliament is a subject of hot debate these days. Though, there is a theory of separation of the powers between the different wings of the government but the supremacy of the constitution viz-a-viz the parliament should be respected at all costs for the successful working of the government. The legislature meaning the parliament is supreme law making body but it has to work under the ambit of the constitutional provisions. Any law passed by the parliament which has the effect of violating the provisions of the constitution is illegal and cannot stand the trail of the judiciary. Thus the apex court can declare any law as void and ultra virus the constitution if it is vitalities of the basic tenets of the constitution. Within this limitation parliament is free to legislate on any subject. There should be no confrontation between the three wings of the parliamentary democracy and all the wings should work in tandem and co-ordination and should not work against each other but work in unison for the best interests of the democracy. No doubt the constitution of the country id the supreme document and the life line of the country but at the same time the parliament is a supreme law making body which is free to legislate on any subject but within the confines of the constitution. Parliament is supreme in the sense that it can even amend the constitution as well and the only criterion is that such amendment should not be ultra virus the basic tenets of the constitution. Judiciary has the powers to see if the parliament and the government work in accordance with the constitution of the country. The Supreme Court has the power to declare any act void if it violates any provision of the constitution. The apex court has the power of judicial review and it can exercise this power to safeguard the constitutional provisions and this is the function of last resort. Parliament of India is supreme in the sense that it can overturn the decision of the apex court by an act of the parliament. We have seen how congress government under the PM Rajiv Gandhi has overturned the judgement in the famous Shah Bano case and it is a historical case. Thus is the parliament empowered to enact law to nullify the decision of the highest court of the country? All this was done for minority appeasement and vote bank politics. So any act of the parliament is weighed on the touchstone of the constitutional validity by the Supreme Court but at the same time the parliament has the legislative powers to nullify any decision of the apex court. However this is done very scarcely and in the interest of the country and the constitution. The three wings of the parliamentary democracy should not work in conflict with each other but should work in coordination with each other. The parity and balance of power should be observed at all costs for the successful functioning of the democratic governance. There is a thin line between the three wings of the governance and all the wings of the democracy should work within their delineated role and should not trespass into the domain of the others as the powers of all the three are clearly given and therefore all the wings should work independently but should not be at draggers drawn but should work in total coordination. Different rite petitions and they have been filed in the supreme court of India by different organisations and persons against the scrapping of article 370 of the constitution and also against the CAA. Now it is to be seen as to how will the court deal with the situation. How will the principle of the separation and the judicial review will be balanced is the million dollar question? |
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